UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

IVY FEATHERSTONE,

Plaintiff,

Case No.: 2:12-cv-524

-v- JUDGE SMITH

Magistrate Judge King

HIRAM HOWARD, 

Defendant.

OPINION AND ORDER

This matter is before the Court on Defendant Hiram Howard’s Motion for Summary

Judgment (Doc. 16). The motion is fully briefed and ripe for review. For the following reasons,

the Court GRANTS Defendant’s Motion for Summary Judgment.

I. Background

In early June 2012, Defendant Hiram Howard, a Code Enforcement Officer for the City

of Columbus, Department of Development, received a complaint from a neighbor of Plaintiff Ivy

Featherstone regarding the possible obstruction of a sidewalk along Pine Valley Road. 

Plaintiff’s property is located at 3024 East Hudson Street, but the property is also adjacent to

Pine Valley Road. Defendant conducted an inspection of the property as a result of the

complaint, and he observed trees from Plaintiff’s property obstructing the sidewalk along Pine

Valley Road. Columbus City Code § 902.02 generally prohibits any person from obstructing any

sidewalk or right-of-way. Under Columbus City Code § 902.00, the “director of the public

service department, the director of the department of safety, the director of the department of

development, the health commissioner, and their designees” have the authority to enforce 

§ 902.02.

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On June 8, 2012, Defendant issued a “Right-of-Way Violation Order” (hereinafter

“violation order”) to Plaintiff, notifying him that the “right-of-way is being blocked. Remove

said obstruction from the right-of-way. Low hanging tree limbs from your yard are obstructing

the sidewalk.” (Doc. 16-1, Ex. B). The violation order warned Plaintiff that if he did not correct

the problem within 10 days, or later if an extension was granted, then the failure to comply with

the notice would be a third degree misdemeanor. 

On June 13, 2012, Plaintiff, proceeding pro se, initiated this action against Defendant

under 42 U.S.C. § 1983 for alleged violations of his Constitutional rights. Plaintiff alleges that

Defendant, acting under color of law, violated his Constitutional rights by discriminating against

him on the basis of his race, and by retaliating against him for engaging in protected conduct, in

connection with Defendant’s issuance of the violation order.

On June 21, 2012, Defendant took medical leave from his job. Defendant returned to

work on September 24, 2012. After returning to work, Defendant reinspected the sidewalk along

Plaintiff’s property on Pine Valley Road, and he determined that the trees were no longer

obstructing the sidewalk. Consequently, in October 2012, Defendant sent a letter to Plaintiff

indicating that the trees along Pine Valley Road were no longer in violation of Columbus City

Code § 902.02, and that the violation order was officially withdrawn. Plaintiff received the

October 2012 letter, and he acknowledges that no enforcement action has been taken against

him.

In February 2013, Defendant filed his Motion for Summary Judgment, which is ripe for

disposition. Defendant argues that Plaintiff fails to present evidence to support his allegations

that Defendant violated his constitutional rights, and that Plaintiff’s claims fail as a matter of

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law. Alternatively, Defendant argues that he is entitled to qualified immunity.

II. Summary Judgment Standard

The standard governing summary judgment is set forth in Rule 56 of the Federal Rules of

Civil Procedure, which provides that “[t]he court shall grant summary judgment if the movant

shows that there is no genuine dispute as to any material fact and the movant is entitled to

judgment as a matter of law.”

Summary judgment will not lie if the dispute about a material fact is genuine; “that is, if

the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” 

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Summary judgment is appropriate,

however, if the nonmoving party fails to make a showing sufficient to establish the existence of

an element essential to that party’s case and on which that party will bear the burden of proof at

trial. See Muncie Power Prods., Inc. v. United Techs. Auto., Inc., 328 F.3d 870, 873 (6th Cir.

2003) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)); see also Matsushita Electric

Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 588 (1986).

When reviewing a summary judgment motion, the Court must view all the facts, evidence

and any inferences that may permissibly be drawn from the facts, in favor of the nonmoving

party. Matsushita, 475 U.S. at 587. The Court will ultimately determine whether “the evidence

presents a sufficient disagreement to require submission to a jury or whether it is so one-sided

that one party must prevail as a matter of law.” Liberty Lobby, 477 U.S. at 251-53. Moreover,

the purpose of the procedure is not to resolve factual issues, but to determine if there are genuine

issues of fact to be tried. Lashlee v. Sumner, 570 F.2d 107, 111 (6thCir. 1978). The Court’s

duty is to determine only whether sufficient evidence has been presented to make the issue of

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fact a proper question for the jury; it does not weigh the evidence, judge the credibility of

witnesses, or determine the truth of the matter. Liberty Lobby, 477 U.S. at 249; Weaver v.

Shadoan, 340 F.3d 398, 405 (6thCir. 2003). 

In responding to a summary judgment motion, the nonmoving party “cannot rely on the

hope that the trier of fact will disbelieve the movant’s denial of a disputed fact, but must ‘present

affirmative evidence in order to defeat a properly supported motion for summary judgment.’”

Street v. J.C. Bradford & Co., 886 F.2d 1472, 1479 (6thCir. 1989) (quoting Liberty Lobby, 477

U.S. at 257). The existence of a mere scintilla of evidence in support of the opposing party’s

position is insufficient; there must be evidence on which the jury could reasonably find for the

opposing party. Liberty Lobby, 477 U.S. at 252. The nonmoving party must present “significant

probative evidence” to demonstrate that “there is [more than] some metaphysical doubt as to the

material facts.” Moore v. Phillip Morris Companies, Inc., 8 F.3d 335, 340 (6thCir. 1993). The

Court may, however, enter summary judgment if it concludes that a fair-minded jury could not

return a verdict in favor of the nonmoving party based on the presented evidence. Liberty Lobby,

477 U.S. at 251-52; see also Lansing Dairy, Inc. v. Espy, 39 F.3d 1339, 1347 (6thCir. 1994).

Moreover, “[t]he trial court no longer has a duty to search the entire record to establish

that it is bereft of a genuine issue of material fact.” Street, 886 F.2d at 1479-80. That is, the

nonmoving party has an affirmative duty to direct the court’s attention to those specific portions

of the record upon which it seeks to rely to create a genuine issue of material fact. In re Morris,

260 F.3d 654, 665 (6thCir. 2001).

III. Discussion

Plaintiff brings his claims under the authority of 42 U.S.C. § 1983, which provides in

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relevant part:

Every person who, under color of any statute, ordinance, regulation, custom, or

usage, of any State or Territory or the District of Columbia, subjects, or causes to

be subjected, any citizen of the United States or other person within the

jurisdiction thereof to the deprivation of any rights, privileges, or immunities

secured by the Constitution and laws, shall be liable to the party injured in an

action at law, suit in equity, or other proper proceeding for redress.

This statute “is not itself a source of substantive right, but merely provides a method for

vindicating federal rights elsewhere conferred.” Graham v. Connor, 490 U.S. 386, 393–94

(1989) (quoting Baker v. McCollan, 443 U.S. 137 (1979)). To prevail on a claim under § 1983, a

plaintiff must prove: (1) that the defendant acted under color of law; and (2) that the defendant

deprived the plaintiff of a right secured by the United States Constitution or federal statute. See

Adickes v. S.H. Kress & Co., 398 U.S. 144, 150 (1970); see also Wittstock v. Mark A. Van Sile,

Inc., 330 F.3d 899, 902 (6th Cir. 2003).

Plaintiff generally alleges that Defendant violated his Constitutional rights in connection

with the issuance of the violation order.1

 Liberally construing Plaintiff’s Complaint,2 Plaintiff

more particularly alleges that Defendant discriminated against him on the basis of his race, in

violation of the Equal Protection Clause, and that Defendant retaliated against him for filing a

lawsuit against another City of Columbus employee, in violation of his First Amendment rights. 

The Court will address these two claims in turn.

A. Equal Protection Claim

Plaintiff alleges that Defendant denied him equal protection under the law because

1

 It is undisputed that Defendant was acting under color of law when he issued the

violation order.

2 Pro se complaints must be liberally construed. Erickson v. Pardus, 551 U.S. 89, 94

(2007). 

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Defendant engaged in discriminatory conduct on the basis of Plaintiff’s race. The Equal

Protection Clause of the Fourteenth Amendment commands that “no state shall . . . deny to any

person within its jurisdiction the equal protection of the laws.” U.S. Const. amend. XIV, § 1. 

“The Equal Protection Clause prohibits discrimination by government which either burdens a

fundamental right, targets a suspect class, or intentionally treats one differently than others

similarly situated without any rational basis for the difference.” TriHealth, Inc. v. Bd. of

Comm’rs, 430 F.3d 783, 788 (6th Cir. 2005). To prove his claim of racial discrimination in

violation of the Equal Protection Clause, Plaintiff must show that Defendant, a state actor,

purposefully discriminated against him on the basis of his race. See Vill. of Arlington Heights v.

Metro. Housing Dev. Corp., 429 U.S. 252, 265 (1977); Washington v. Davis, 426 U.S. 229, 239

(1976).

Plaintiff’s discrimination claim is based on his assertion that other residents in his

neighborhood had obstructions in the right-of-ways adjacent to their properties, but no action

was taken against them. Plaintiff reasons that Defendant targeted him on the basis of his race, as

it relates to issuing violation orders for obstructions, because no action was taken against his

neighbors. Plaintiff fails to present, however, any evidence showing that Defendant

discriminated against him on the basis of his race.

Defendant has testified that he issued the violation order because of the neighbor’s

complaint and his inspection of the sidewalk area, and for no other reason. Defendant denies

that Plaintiff’s race had any connection to his decision to issue the order. Defendant testified

that he did not recall any other residences in the neighborhood having conditions similar to the

condition of the sidewalk along Plaintiff’s property. Defendant further testified that, if a

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complaint had been made about another residence, he would have investigated the complaint and

issued a violation order if appropriate.

In response to Defendant’s evidence, Plaintiff baldly asserts that Defendant discriminated

against him because he is black, notwithstanding the fact that Defendant identifies himself as

African-American. Plaintiff speculates that Defendant dislikes blacks and that is why he issued

the violation order. Plaintiff further attempts to counter Defendant’s evidence by submitting

photographs of other properties in his neighborhood, purporting to be in violation of Columbus

City Code § 902.02. Apparently, Plaintiff submitted these photographs to show that there were

other code violations in his neighborhood, and that Defendant took no action as to these other

apparent violations. But these photographs prove nothing as it relates to Plaintiff’s federal

claims. They do not show that Defendant received a complaint regarding any of these

conditions, that he investigated any of the conditions, or that he had knowledge of the race(s) of

particular property residents. Simply stated, Plaintiff presents no evidence supporting his claim

that Defendant was motivated by a racially discriminatory intent or purpose when he issued the

violation order. Plaintiff’s conjecture and speculation does not create a genuine issue of material

fact. See Lewis v. Philip Morris Inc., 355 F.3d 515, 533 (6th Cir. 2004) (“In order to survive a

motion for summary judgment, the non-moving party must be able to show sufficient probative

evidence [that] would permit a finding in [his or her] favor on more than mere speculation,

conjecture, or fantasy.”

Because Plaintiff fails to show the requisite discriminatory intent or purpose, his claim of

racial discrimination in violation of the Equal Protection Clause fails as a matter of law.

B. First Amendment Claim

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Plaintiff alleges that Defendant violated his First Amendment rights by issuing the

violation order in retaliation for Plaintiff filing a lawsuit in 2008 against Hank Graham, a City of

Columbus employee. The elements of a First Amendment3

 retaliation claim are: (1) the plaintiff

engaged in protected conduct; (2) an adverse action was taken against the plaintiff that would

deter a person of ordinary firmness from continuing to engage in that conduct; and (3) there is a

causal connection between elements one and two – that is, the adverse action was motivated at

least in part by the plaintiff’s protected conduct. Muhammad v. Close, 379 F.3d 413, 416 (6th

Cir. 2004) (citing Thaddeus-X v. Blatter, 175 F.3d 378, 394 (6th Cir. 1999) (en banc)).

Plaintiff undoubtedly engaged in protected conduct when he filed a lawsuit against Mr.

Graham, a City of Columbus employee, in 2008 relating to Mr. Graham’s removal of signs from

Plaintiff’s yard. See Thaddeus-X, 175 F.3d at 396 (noting that the filing of a lawsuit to redress

grievances is clearly a protected activity under the First Amendment); see Featherstone v.

Graham, No. 2:08-cv-690, 2011 WL 1324561 (Apr. 5, 2011) (Frost, J.) (previous lawsuit filed

by Plaintiff). Thus, Plaintiff meets the first requirement for proving a First Amendment

retaliation claim.

As to the second requirement for proving a First Amendment retaliation claim, Plaintiff

asserts that the issuance of the violation order constituted adverse action, despite Defendant’s

subsequent withdrawal of the violation order. The Sixth Circuit has defined “adverse action” as

one “that would ‘deter a person of ordinary firmness’ from the exercise of the right at stake.” 

Thaddeus-X, 175 F.3d at 396. Even assuming, for the purpose of Plaintiff’s First Amendment

3

 The First Amendment is applicable to the States through the Due Process Clause of the

Fourteenth Amendment. See Virginia State Board of Pharmacy v. Virginia Citizens Consumer

Council, 425 U.S. 748, 749 n.1 (1976).

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retaliation claim, the issuance of the violation order itself constituted an adverse action, even

though no subsequent action was taken against Plaintiff, Plaintiff cannot meet the third element

of this claim.

Plaintiff fails to present any evidence demonstrating that Defendant’s issuance of the

violation order was motivated at least in part by Plaintiff’s protected conduct. Defendant has

testified that, as of the date he issued the violation order, he was unaware of the lawsuit

involving Plaintiff and Mr. Graham. Defendant further testified that he does not know Mr.

Graham, that he has never spoken to Mr. Graham, and that he did not otherwise consult with Mr.

Graham prior to issuing the violation order. According to Defendant, he did not consult with

anyone other than Plaintiff’s neighbor prior to issuing the violation order.

In response to Defendant’s evidence concerning Plaintiff’s retaliation claim, Plaintiff

argues that it is unbelievable that Defendant did not know Mr. Graham. Defendant testified that

he is a Code Enforcement Officer with the City of Columbus’ Department of Development, and

there is evidence that Mr. Graham worked as an Engineering Associate I/Right-of-Way

Coordinator within the City of Columbus’ Department of Public Service, Transportation

Division. Thus, Defendant and Mr. Graham worked within different departments at the City of

Columbus. While both may enforce Columbus City Code § 902.02, including right-of-way

issues, that fact does not lead to the inference that they must have known each other. Plaintiff’s

challenge to Defendant’s evidence thus rests on speculation. Therefore, Plaintiff presents no

evidence disputing Defendant’s assertion that he does not know Mr. Graham, or that he was

unaware of Plaintiff’s lawsuit against Mr. Graham. Consequently, Plaintiff cannot show a causal

connection or link between his filing of the lawsuit in 2008, and Defendant issuing the violation

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order in 2012. Because Plaintiff cannot prove the third element of his First Amendment

retaliation claim, that claim also fails as a matter of law.

Moreover, because Defendant is entitled to summary judgment on both of Plaintiff’s

claims, it is unnecessary to address Defendant’s alternative argument that he is entitled to

qualified immunity. See Glasstetter v. Rehabilitation Services Comm’n, No. 2:07-cv-125, 2010

WL 2465356 (S.D. Ohio June 14, 2010) (Smith, J.).

IV. Conclusion

For the foregoing reasons, the Court GRANTS Defendant’s Motion for Summary

Judgment. Therefore, Plaintiff’s claims are DISMISSED with prejudice. The Clerk shall enter

FINAL JUDGMENT in favor of Defendant.

The Clerk shall remove Document 16 from the Court’s pending motions list.

The Clerk shall remove this case from the Court’s pending cases list.

IT IS SO ORDERED.

 s/ George C. Smith 

GEORGE C. SMITH, JUDGE

UNITED STATES DISTRICT COURT

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